IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Lim v. Anderson, |
| 2012 BCSC 263 |
Date: 20120208
Docket: M096165
Registry:
Vancouver
Between:
Lolah Lim
Plaintiff
And
Russell Andrew
Anderson and Mary Veletia Anderson
Defendants
Before:
The Honourable Madam Justice Fenlon
Oral Reasons for Judgment
Counsel for the Plaintiff: | T.J.H. Maledy |
Counsel for the Defendants: | R. Hodgins |
Place and Date of Trial: | Vancouver, B.C. |
Place and Date of Judgment: | Vancouver, B.C. |
[1]
THE COURT: The 42-year-old plaintiff, Lolah Lim, was injured in
a car accident four years ago. The defendants admit liability for the accident
but dispute the extent and duration of the plaintiffs injuries and the amount
of damages, in particular Ms. Lims claim for loss of future earning
capacity.
BACKGROUND
[2]
On February 14, 2008, Ms. Lim was turning left onto Boundary Road
from Lougheed Highway when the defendants car ran a red light and collided
with the passenger side of her vehicle. Ms. Lims passenger had to be
removed from the car with the Jaws of Life. Ms. Lim was in considerable
pain at the scene and was transported to hospital by ambulance and released the
next day.
[3]
There is no doubt that the plaintiff was injured in the accident. She
had bruising to her chest and both shoulders and her neck and left shoulder and
arm were sore. For the first two weeks after the accident she was bedridden. For
about six weeks Ms. Lim was unable to bathe, wash or brush her hair or
dress herself. Her daughter Megan, then 12, helped her with those tasks, while
her husband, from whom she had separated but who to this day lives in the
basement level of their home, took over housework and child care of Megan and
their then five-year-old son.
[4]
For two months after the accident Ms. Lim could not drive and could
not return to her job as a casino cashier for four and a half months.
ANALYSIS
1.
What injuries has Ms. Lim sustained due to the accident?
[5]
The parties and the medical professionals agree that Ms. Lim was in
good health before the accident and did not suffer from headaches, neck, back
or shoulder pain. They also agree that Ms. Lim suffered soft tissue
injuries in the accident that continue to cause her residual pain in her neck,
shoulders and lower back.
[6]
The defendants orthopaedic expert, Dr. Christian, described the
plaintiffs condition as whiplash associated disorder rather than soft tissue
injuries, but nothing turns on that. The medical experts also agree that Ms. Lim
had pre-existing calcification of the tendons in both shoulders that was
asymptomatic before the accident.
[7]
There was a difference of opinion between Dr. Christian and the
plaintiffs treating orthopaedic surgeon, Dr. Yu, as to the cause of the
plaintiffs ongoing shoulder pain. Dr. Yu attributes it to calcific
tendonitis caused by the soft tissue injuries. In his view, with the injury
there was bruising and swelling or hemorrhage into the rotator cuff giving rise
to pain or an abduction and impingement syndrome. In this condition the tendon
is pinched between the under surface of the acromion and the humeral head,
resulting in pain on movement.
[8]
In contrast, Dr. Christian views the plaintiffs shoulder pain as
stemming from residual soft tissue injuries.
[9]
While it is not really necessary to choose between the opinions on
causation, given the agreement on ongoing residual pain in the shoulder, I
prefer Dr. Yus diagnosis. That preference does not in any way reflect a
lack of confidence in the skill of Dr. Christian. It rests, rather, on the
more extensive investigations conducted by Dr. Yu, who treated the
plaintiff over two years and saw her on seven occasions.
[10]
I accept his finding that the plaintiffs response to an injection into
the subacromial space of her right shoulder, (temporary relief from pain),
confirmed his diagnosis.
[11]
The defendants do not dispute the other largely resolved injuries the
plaintiff claims resulted from the accident: headaches, dizziness, nausea,
neck pain and chest pain.
[12]
The headaches were initially frequent, three to four times per week, and
controlled with Tylenol 3 and Celebrex medication initially. By the time she
returned to work, the headaches had reduced to two to three times per week, and
they have slowly decreased to approximately four times per month.
[13]
The plaintiffs nausea and dizziness disappeared within a few weeks. Her
chest pain resolved within about six weeks.
[14]
In terms of the ongoing problems, I note the following. First with
respect to her neck, it was stiff and painful and originally bothered her a
great deal. The ambulance attendants placed her neck in a collar, which she
wore for a week. However, as time went on, medication improved her condition
and within about a month and a half her neck pain frequency was two to three
times per week. By the time she was back at work full-time, her neck was not
her prominent symptom. On several occasions over the past three and a half
years Ms. Lim has had little or no neck pain, followed by periods of
flare-ups. She reports, and I find, that she has neck pain once or twice a
week, particularly if she is working at one of the heavier cashier positions at
the casino.
[15]
Second, with respect to her low back, the plaintiff has to stand at work
to deal with customers. Long periods of standing or sitting cause her lower
back to hurt on occasion.
[16]
Finally, in relation to her shoulders, the plaintiffs shoulder pain
makes it difficult for her to lift coin bags, carry more than two poker chip
trays at a time, change bed sheets, lift heavy pots and groceries, or do heavy
yard and housework.
[17]
The plaintiff manages the continuing symptoms she has (headaches, sore
neck, shoulders and low back) with exercise and medication. She takes four to
six over-the-counter Advil or Tylenol when she has to go to work in order to
cope with the pain, and she takes medication at night to control the pain so
that she can sleep.
2.
Did the plaintiff fail to mitigate her damages?
[18]
A preliminary issue I must decide before assessing damages is whether
the plaintiff has failed to mitigate her damages. The defendants must prove
that the plaintiff failed to follow recommended treatment by a qualified
practitioner that could have overcome or reduced her current or future problems:
Papineau v. Dorman, 2008 BCSC 1443. The
applicable standard is reasonableness. The defendants must demonstrate
that the plaintiff unreasonably refused to follow the practitioners
recommendations.
[19]
The defendants say that the plaintiff initially disregarded the advice
of her doctors in three ways: first, by failing to return to exercise; second,
by not continuing with physiotherapy sessions; and third, by not following Dr. Yus
recommendation of further injections or surgery for her shoulders. I will deal
with each in turn.
(a)
Return to Exercise
[20]
The overwhelming medical evidence is that Ms. Lim was advised to
return to exercising as she could tolerate. She completed an active
rehabilitation program, and I find she continues to exercise to some extent.
[21]
The defendants real complaint in this regard is that Ms. Lim
failed to follow Dr. Yus recommendation to do shoulder exercises at 50
repetitions per day. The plaintiff stopped doing the exercises because they hurt
her and did not seem to be helping.
[22]
Dr. Yus evidence did not support the defendants contention that
the plaintiffs failure to do the 50 repetitions per day has impaired her
recovery.
(b)
Surgery and Injections
[23]
Here too, while Dr. Yu listed further injections or surgery as
possible further treatments, he did not opine that they would fix the
plaintiffs problems with her shoulders. The injections offered at least
temporary relief. The first and only one the plaintiff underwent gave her two
months without pain. The plaintiff described the pain relief as like a miracle.
[24]
It can be implied from the location of the space into which the steroid
medication has to be injected, from Dr. Yus evidence and from Ms. Lims
decision not to repeat it every two months despite the relief that followed, that
the needle itself is unpleasant. Further, Dr. Yu acknowledged that
injections are not always successful and that patients have to balance the pain
of the injection against the pain without it. Surgery carries with it risks and
time off work.
[25]
A plaintiff is only required to do what is reasonable, and I do not find
to be unreasonable Ms. Lims decision to decline further injections and
surgery and to instead use pain medication to control her symptoms.
(c)
Physiotherapy
[26]
Physiotherapy was prescribed by Ms. Lims family doctor in 2008 and
again in September 2011, but Ms. Lim did not complete all of the sessions
recommended. She found the physio did not seem to be helping her much and
pursued other forms of treatment which she found gave her greater relief, in
particular acupuncture. I note that the defendants own expert held the view
that after the first acute phase, physiotherapy would not improve the
plaintiffs injuries.
[27]
Even if some of the missed physiotherapy occurred within the acute
phase, I find that the reasonableness of a plaintiffs failure to follow a particular
medical recommendation should not be assessed in isolation from her overall
efforts.
[28]
Considered as a whole, I find that while Ms. Lims efforts to
mitigate were not perfect, they were reasonable. In addition to regular
acupuncture treatments, she saw her family doctor on about 24 occasions, sought
treatment from her orthopaedic specialist on seven, went for treatments at
Mountainview Kinesiology for active rehabilitation on 37 occasions and for
physiotherapy at Eagle Ridge Aquatic Centre on 39 occasions.
[29]
In summary, I do not find that the defendants have proven that the
plaintiff failed to mitigate.
3.
Non-Pecuniary Damages
[30]
An award of non-pecuniary damages compensates a plaintiff for loss of
amenities, pain, suffering and loss of enjoyment of life.
[31]
In Stapley v. Hejslet, 2006 BCCA 34 the Court of Appeal outlined
the factors a trial judge should consider when assessing such damages (at para. 46):
The inexhaustive list of common factors cited in Boyd
that influence an award of non-pecuniary damages includes:
(a) age of the plaintiff;
(b) nature of the injury;
(c) severity and duration of pain;
(d) disability;
(e) emotional suffering; and
(f) loss or impairment of life;
I would add the following factors, although they may arguably
be subsumed in the above list:
(g) impairment of family, marital and social
relationships;
(h) impairment of physical and mental abilities;
(i) loss of lifestyle; and
(j) the plaintiff’s
stoicism (as a factor that should not, generally speaking, penalize the
plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA
54).
[32]
The defendants submit that, based on similar cases, an award of $30,000
to $40,000 is appropriate. The plaintiff relies on cases that support an award
under this head of $50,000 to $85,000 and submit that $75,000 is an appropriate
award.
[33]
Other cases can provide guidance only. Ultimately, I must apply the
factors listed in Stapley to Ms. Lims particular situation. I note
that the cases at the higher end of the range generally involve plaintiffs who
were physically active and for whom athletics were an important and regular
part of their lives before their injuries.
[34]
Ms. Lim, perhaps unintentionally, exaggerated her activity level
before the accident. She described being unable to participate in many of the
activities she engaged in regularly prior to the accident, including exercise
at her gym, jogging, bowling, tennis and swimming.
[35]
The evidence at trial did not support this pre-accident level of
activity. For example, the plaintiff testified on direct examination that
before the accident she jogged two to three times per week for about an hour
each time. At discovery in August 2010, she gave evidence that before the
accident she would run for one to one-and-a-half hours three to four times a
week with her husband, but under cross-examination when confronted with her
discovery evidence, she conceded that she could not jog that much and her
husband had to work. It is also striking that Ms. Lims husband said that
he does not jog and had not jogged at all either before or after the accident.
[36]
Similarly, Ms. Lim described swimming four to five times a week,
but I find on the evidence that she swam recreationally for 20 to 30 minutes
when she took her children to the pool for lessons.
[37]
Tennis, bowling and hiking were very infrequent recreational activities
and she had fished only once.
[38]
The biggest impact on Ms. Lim in terms of loss of enjoyment of life
is her inability to cook using a wok, to do the vacuuming and heavy housework
she used to do to keep her home in the meticulous order she enjoyed and to do
her own gardening and yard work. Her co-workers describe a woman who is less
cheerful than she used to be and is often sore and uncomfortable at work. She
can no longer pour tea when they go for dim sum together, something she always
did before the accident.
[39]
There is medical evidence that suggests that the plaintiffs soft tissue
injuries may further improve with exercise over time, although the evidence
supports a finding that her shoulders will not likely improve in future.
[40]
Taking into account all of the Stapley factors, I find that an
award of $55,000 for pain, suffering and loss of enjoyment of life is
appropriate.
4.
Special Damages
[41]
The plaintiff seeks special damages of $5,896.25. The defendants do not
contest the special damages claimed for items like user fees, taxi receipts and
so on. They also accept the lawn mowing expenses during the acute stage of the
injuries from April to October 2008, in the amount of $630.
[42]
Primarily the defendants dispute the lawn mowing expenses after October
2008 on the basis that the plaintiff or her husband could have cut the lawn. I
find the plaintiff is unable to mow the lawn without causing a flare-up of her
soft tissue injuries, but I also find the frequency of the lawn cutting
increased once a service was hired and that her husband stopped cutting the
lawn altogether.
[43]
I therefore disallow one-half of the lawn cutting expenses claimed after
October 2008 at $90 per mowing; in other words, half of the $1,350 claimed for
2009 and 2010 and half of the $720 claimed for 2011, which comes to $1,035. Deducting
that sum from the plaintiffs adjusted total claim of $5,896 leaves $4,861. I
award the plaintiff that sum in special damages.
5.
Future Care Costs
[44]
The plaintiff seeks future care costs of $7,500 for mileage costs to get
to therapy treatments, and doctors visits, and for acupuncture to reduce pain,
household help, and lawn maintenance.
[45]
In order to recover damages under this head, the plaintiff must prove
that there is a real and substantial possibility that she will incur future
care costs as a result of the injuries sustained in the accident. Those future
expenses do not have to be a medical necessity, but they must be medically
justified and reasonable: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33
(S.C.).
[46]
The defendants say the plaintiff should receive nothing for future care
because there is no medical evidence supporting Ms. Lims claim for
acupuncture and therapy, household help and lawn maintenance. There is,
however, medical evidence that Ms. Lim has residual pain from soft tissue
injuries and calcific tendonitis and her own evidence that heavier work, such
as mowing and yard work, is difficult for her.
[47]
I accept that she takes over-the-counter pain medications daily when she
works. There is also the evidence of Dr. Yen, an acupuncturist, that
supports acupuncture to treat the ongoing pain in her shoulders and back.
[48]
I award the plaintiff $5,000 under this head of damages.
6.
Past Wage Loss
[49]
That loss is agreed to at $9,750, and I award the plaintiff that sum.
7.
Loss of Earning Capacity
[50]
Loss of earning capacity is the central issue in this case. The
plaintiff seeks $85,000 for loss of this capital asset. The defendants say the
plaintiff has failed to prove this aspect of her claim and should therefore
receive nothing for loss of future earning capacity.
[51]
As noted by the Court of Appeal in Perren v. Lalari, 2010 BCCA
140, this is a pecuniary head of damages. The plaintiff must therefore prove
financial loss due to the impairment from the accident; in other words, if she
had not been injured, her future earnings would be higher than they will now be
with the injuries.
[52]
An assessment of loss of future earning capacity involves consideration
of hypothetical events. The plaintiff is therefore not required to prove the
hypothetical events on a balance of probabilities. The hypothetical event is to
be given weight according to its relative likelihood: Athey v. Leonati,
[1996] 3 S.C.R. 458 at para. 27.
[53]
The test is whether the plaintiff has proven that there is a real and
substantial possibility that but for her injuries she would earn more money in
future. The defendants say Ms. Lim has failed to meet this burden of proof
because she continues to work full-time at the same job she had before the
accident, is a valued and respected employee who does her job well, and has not
missed a day since returning to work after the acute phase of her injury.
[54]
The starting point in my analysis is Ms. Lims career plans pre-accident.
She intended to work at the casino until age 55 and then sell her home here and
retire to Malaysia, her country of origin, where she will enjoy a comfortable
standard of living given the three-to-one exchange rate with the Malaysian
currency.
[55]
If she continues in her present position for the next 13 years, that
plan could become a reality and Ms. Lims pre- and post-accident future
income would be the same, that is, as the defendants submit, she would suffer
no loss. But I must assess whether the plaintiff has proved, in the words
of Perren v. Lalari at para. 32, that there is a real and
substantial possibility of a future event leading to an income loss.
[56]
There is no doubt that the plaintiff can do her job. The physical
capacity and work tolerance assessment conducted by the plaintiffs expert
confirm that Ms. Lim is qualified for sedentary job demands with
occasional light lifting, although not repetitive regular lifting, and has the
capacity to do the tasks demanded of her as a casino cashier. Indeed, Ms. Lim
has been doing this job with informal and only occasional assistance from
co-workers who pitch in to help with lifting heavy coin bags if she is having a
bad day.
[57]
The plaintiffs performance evaluations have all been positive. Nonetheless,
despite her work ethic and past efforts, the job of a casino cashier is not a
secure one. It is not a unionized work force. Cashiers face dismissal for any
range of reasons. The plaintiffs supervisor testified that continued cash
errors by a cashier result in dismissal. Ms. Lim has already committed two
such errors, one in the amount of $1,000 which resulted in a suspension for a
period of time, and a lesser one in the amount of about $100. In 2009 25
cashiers were laid off due to a downturn in business, although Ms. Lim
retained her position.
[58]
The rules regarding the behaviour of a cashier assistant are strict and
the consequences of a breach of those rules serious. An employee who, for
example, persists in rolling up her sleeves after being told not to or who
forms a romantic relationship with another cashier faces suspension. Cashiers
are subject to dismissal for only three late appearances at work.
[59]
In these circumstances, I find that there is a real and substantial
possibility that Ms. Lim may lose her current job in the future.
[60]
If she loses her casino position, which currently pays $15.75 an hour
and will pay a maximum of $17 per hour in about three years, Ms. Lim will
not have open to her the employment opportunities in areas she would
realistically have considered prior to sustaining her injuries. When she first
moved to Canada, she worked in a restaurant in the kitchen and as a server. For
a time in 2002 she worked as a postal clerk at a drug store. Both positions
involve repetitive lifting and carrying.
[61]
Ms. Lims English is relatively poor. Her loss of physical strength
has impaired her employability in physically demanding jobs, jobs that she was
formerly qualified to do and did.
[62]
I find that the factors listed in Brown v. Golaiy (1985), 26
B.C.L.R. (3d) 353 (S.C.) apply to the plaintiff and that she has demonstrated a
loss of capacity to earn income in the future. I note as well that even within
her current job as a cashier, there is a real and substantial possibility that Ms. Lim
will accept fewer overtime shifts because of her injuries.
[63]
Before quantifying the damages to be awarded for the loss of this
capital asset, I must address the plaintiffs submission that the loss is even
greater because her injuries prevented her from obtaining employment with the
City of Vancouver as a motorized litter cart operator. This position, a
unionized one, would pay an additional $20,800 per year. To age 55 the present
value of that loss is estimated at $135,320.
[64]
A litter cart operator position involves driving a truck to various
locations within the city, getting out and using a shovel or other tool to pick
up litter, putting it into a bucket and then dumping that bucket into the back
of the truck. I accept that Ms. Lim would have difficulty performing these
tasks in her present condition. However, the real question is whether this is a
job that Ms. Lim would realistically have applied for but for her injuries.
[65]
Ms. Lim has never done outdoor physical labour of this kind. She is
someone who clearly enjoys the social aspect of her work and indeed regularly
socializes with co-workers outside of work. The work of a motorized litter cart
operator is an isolated one. Ms. Lim is also a woman of small stature. Further,
even if she applied, there is no certainty that the job would be hers, although
her application would be supported and assisted by a friend who works at the
City and also at the casino.
[66]
The increased wage would no doubt be attractive to Ms. Lim. However,
I do not find that Ms. Lim would have been likely to apply for the job of
a motorized litter cart operator but for her injuries. I therefore do not find
that she has proved that there is a real and substantial possibility that but
for the accident she would have applied for and obtained the job of a litter
cart operator.
[67]
Although I have referred to the lack of certainty and used the phrase
unlikely in relation to Ms. Lim applying for or getting the City
position, in making this finding I am applying the standard of whether there
was a real and substantial possibility that she would apply for and obtain the
job. In other words, I am assessing the loss of that opportunity. Ms. Lim
does not have to prove that she would have gotten the job if she had applied.
[68]
This is not a case in which damages for loss of future earning capacity
can be assessed using an earnings approach. Rather, I must use a capital asset
approach. In other words, there is no basis for doing a mathematical
calculation of income lost per year and then giving a present value for that loss. At
the end of the day, as Huddart J.A. observed in Rosvold v. Dunlop, 2001
BCCA 1 at para. 18, the assessment of damages is a matter of judgment, not
a calculation.
[69]
In all the circumstances of this case, I assess damages under this head
at $50,000.
[70]
In summary, the plaintiff is awarded $55,000 for pain and suffering;
$50,000 for loss of earning capacity; $9,750 for past wage loss; $4,861 for
special damages; $5,000 for cost of future care, for a total of $124,611.
[71]
In the ordinary course I would award the plaintiff costs at Scale B.
[72]
Is it necessary to speak to costs, counsel?
[DISCUSSION]
[73]
THE COURT: Then I encourage you to reach an agreement on costs. If you
need to return, I give you leave to do so at 9 oclock to argue that issue. I
would ask that you provide me with any written submissions you would like to
make the day before.
The
Honourable Madam Justice L.A. Fenlon